Two 'high-risk' sex offenders freed without hearing

1of 3Rodney Steve Haines, 60, a convicted pedophile, was discharged from prison on April 25. He was supposed to have a civil commitment hearing to determine whether he is a violent sexual predator to need treatment prior to his release. He now lives in Helotes near San Antonio and his commitment hearing is set for July 27.Photo: Montgomery County

2of 3Joseph David Miller, 56, a convicted pedophile, was discharged from prison on May 28. He was supposed to have a civil commitment hearing to determine whether he is violent sexual predator continuing to need treatment prior to his release. He is now living in Spring and his commitment hearing is set for Aug. 31.

3of 3Judge Michael Seiler of the 435th District Court in Montgomery County. Seiler presides over the sole court for all the state's civil commitment trials for sex offenders.
This photo is courtesy of the Montgomery County Website: http://mctx.org/courts/435th_district_court/index.html

As state officials race to fix growing legal issues over how to keep Texas' most dangerous sex predators off the streets, two convicted sex offenders have been freed without supervision - one in the Houston area and one near San Antonio.

Joseph David Miller and Rodney Steve Haines had been flagged as "high risk" pedophiles, but they never had civil commitment hearings that could have led to their continued confinement. Miller is now living in a small brick home on a wooded street in Spring; Haines is staying at his sister's home in Helotes.

Under Texas law, these hearings should be held at least two months before such offenders complete their prison sentences to determine whether they are "sexually violent predators" who might attack again. If so, they can continue to be kept for treatment.

But those proceedings never took place amid a backlog of cases in the Montgomery County court of state Judge Michael Seiler, who was recently stripped by lawmakers of his authority over all of Texas' civil commitments after being reprimanded by a state judicial commission for perceived bias against these offenders and their attorneys. This, in turn, prompted hundreds of offenders with pending cases in his court to demand hearings to remove Seiler, catching prosecutors off-guard.

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"There's no question that the fault lies with this dysfunctional judge and his court," said state Sen. John Whitmire, D-Houston, who heads the Criminal Justice Committee and has been leading efforts to reform this program. "All the motions to recuse this judge are creating this backlog of cases that need to be handled."

In the meantime, Haines and Miller won't have commitment hearings until July 27 and Aug. 31, respectively. A third pedophile - Justin Wetzel - was also recently released before his commitment hearing could be held. However, the terms of his parole require the "moderate risk" offender to live at a Fort Worth transitional facility and undergo supervision while awaiting his Sept. 14 commitment hearing.

Official: Children at risk

Rose Luna, a spokeswoman for the Texas Association Against Sexual Assault, stressed innocent children could be put at risk by these lapses. "Each sex offender is skipping out of a very important process designed to keep our community safe," she said.

Erin Faseler, section chief for the civil division of Texas' Special Prosecution Unit, acknowledged that the situation is "not ideal."

"Our immediate concern is that such an offender might victimize someone else," Faseler said. "A secondary concern is that they might fail to show up when we do hold the hearing." Prosecutors say they never anticipated virtually every offender would want Seiler removed, which has necessitated finding 65 visiting judges to replace him in just the past 10 months alone.

Whitmire stressed that released offenders must still list their home addresses on Texas' sex offender registry, which subjects them to some monitoring. None of the three offenders has been charged with any new offenses since their release.

Judicial reprimand

Created by the Legislature in 1999, Texas' civil commitment program was designed to provide outpatient treatment for violent repeat sex offenders who have completed their prison sentences but are legally deemed to have a "behavioral abnormality" that leaves them a continuing threat to the community. In 2008, then-Gov. Rick Perry assigned Seiler to oversee Texas' program.

Seiler later came under fire for comments outside of the courtroom in which he referred to offenders in commitment proceedings as "psychopaths" and suggested that "castration from the neck up" might be a good treatment. These remarks, along with complaints that Seiler belittled the offenders' attorneys, resulted in a judicial reprimand on May 1. None of the 369 offenders who were civilly committed ever graduated, giving the appearance that the doorway into the program had no exit.

Each offender in the program was eligible for a hearing every two years in Seiler's court to determine whether he should remain there. Twenty other states have commitment programs, and many, like California, have released some offenders after they completed treatment.

Seiler has repeatedly declined to comment. His attorney, Tom Watkins, who called the reprimand "unfair," said his client decided against a lengthy appeal and has completed the additional judicial training that was ordered.

On June 17, the new state law took effect that deposed Seiler. Instead of all commitment cases being funneled through his Montgomery County court, they will now be assigned to the counties where the crimes occurred.

"Judge Seiler thought he was saving the world. But if we had allowed him to keep going, we would have had no commitment program at all," said Whitmire. He noted that a federal judge ruled Minnesota's commitment program was unconstitutional on the same day that Texas Gov. Greg Abbott signed the law reforming the Lone Star State's similar program.

Nonetheless, Seiler will continue to oversee the cases pending in his court, including the biennial hearings for offenders in the system as well as multiple commitment cases that were filed there. Both Haines and Miller had hearings to remove Seiler as the judge in their cases.

"I tell all my lawyers to file for a recusal hearing whenever Seiler is the sitting judge," said Rudolph Brothers, who heads the state office that provides attorneys for indigent offenders in these proceedings. "We represent the offenders. What happens if they're released while awaiting a hearing is not our problem."

So far Seiler has denied every offender's motion to recuse him, requiring hearings to resolve the issues. To date, Seiler has been removed from 19 cases, and allowed to proceed with 17 others. Nine additional recusal hearings were pending in his court before the commitments shifted to other counties, authorities said.

Jessica Marsh, the general counsel for the violent sex offender management program, called it extremely rare for an offender to slip from the system before a commitment hearing is held.

"We start the screening process 16 months before the release date so it can be completed long before their discharge," she said. The new reform law starts the screening process 24 months before the release date.

Only those perceived to be the most likely to harm new victims make it to a commitment hearing, authorities said.

Many cases flagged

From January 2000 to May 2015, about 56,000 sex offenders were screened by the Texas Department of Corrections. The agency identified 9,400 offenders who might qualify for commitment because they had at least two sexual assault convictions. Those cases were then reviewed by a seven-member interdisciplinary board, which flagged 1,852 that the board felt were most likely to commit a new offense.

Each of these offenders was assessed to determine whether he had a behavior abnormality that would "predispose him to commit a sexually violent offense" and make him a "menace" to others.

After it was determined that 1,250 met this criteria, their cases were referred to prosecutors, who reviewed them and selected 370 to take to trial. Haines and Miller are among those cases.

Reached last month at his sister's home in Medina County, where he now resides, Haines said he was shocked that he was being targeted for potential civil commitment after he felt he had paid his debt to society. He said that his "being out for awhile" without incident should prove that he no longer poses a risk.

"There's some twisted ones in there, but I'm not one of them," said Haines, 60, an unemployed laborer.

Prosecutors have no control over where Haines, who was released on April 25, goes. But if an offender flees and fails to show up for his commitment hearing, that hearing can proceed without him, prosecutors said.

In 2006, Haines was sentenced in Bexar County to 10 years in prison following his conviction for five counts of aggravated sexual assault and two counts of indecency involving a 9-year-old girl; and two counts of aggravated sexual assault involving a 13-year-old girl. Some of the abuse occurred over several years, authorities said.

Haines said he had been accused with assaulting three young girls, but under an agreement with prosecutors entered a guilty plea to assaulting only two of them.

But he continues to maintain his relationships with the children were "consensual," adding that one girl only made accusations against him because, he said, "I refused to pay her cellphone bill."

Luna was horrified by Haines' comments to the Chronicle.

"He's in complete denial," she said. "He's blaming the child who was victimized for what happened. The way he justifies himself, it makes it clear that he's a continuing threat to society."

Scott Pawgan of Conroe, said he does not believe his client will pose a danger.

Miller, 56, speaking outside a home in the Forest North subdivision of Spring, told a reporter that he wanted to tell of his innocence. But he said his lawyers had advised against him talking to anybody.

Miller served a two-year prison sentence for indecency with a child involving an 8-year-old girl and eight years for the sexual assault of two girls, ages 5 and 7. Prosecutors say the cases stem from incidents that occurred over a 25-year span.

Miller was released May 28. His attorney, Kimberly Cleary, declined comment.

The third offender, Wetzel, living at the Fort Worth transitional facility, also won his petition to have Seiler removed.

While acknowledging the urgency to hold commitment hearings before possible predators are freed, prosecutors said it has grown difficult.

"All these recusal hearings," said Faseler, "are causing so many complications and delays."

Cindy Horswell has been a writer at the Houston Chronicle since 1979, where she has won numerous awards for features, news and investigative pieces that she has authored.

A graduate of the University of Texas where she made the dean's list and wrote for the "Daily Texan," she holds a Bachelor of journalism degree. She also has been previously employed as a newscaster at KNOW, an AM radio staton that was No. 1 in the Austin market at that time, where she won an award for a documentary; and was assistant editor of a magazine published by the Texas Restaurant Association.